Marshall a friend of environment, too

LEGAL MATTERS

January 29, 1994|By Gary Cohn | Gary Cohn,Staff Writer

The late Thurgood Marshall is best known as a champion of the civil rights movement. What isn't as well known, though, is that Justice Marshall also was a stalwart of the environmental movement that grew up during his 24 years on the U.S. Supreme Court.

That is the conclusion of Robert Percival, a professor at the University of Maryland School of Law who spent two months last summer poring through Thurgood Marshall's papers at the Library of Congress. The papers were made public last year, providing law professors, historians and reporters with an unusually detailed view of the inner workings of the court.

Mr. Percival, an expert in environmental law and a former law clerk to Justice Byron White, examined "every scrap of paper" in the Marshall files relating to the Supreme Court and the environment. He also analyzed the voting records of Supreme Court justices in environmental cases.

The analysis showed that Justice Marshall voted in favor of environmental interests more often than any other justice except the late William O. Douglas.

At first glance, Justice Marshall's environmental record is something of a surprise.

Justice Marshall, who was born in Baltimore in 1908, served for 25 years as legal counsel for the NAACP, winning 29 of the 32 cases he argued before the Supreme Court. He was appointed to the Supreme Court in 1967.

Mr. Percival said that Justice Marshall's steady support for the environment during his tenure on the court was a natural extension of his record on civil rights as well as a reflection of his suspicion of big business.

"There's a lot of common ground between the civil rights movement and the environmental movement," Mr. Percival said.

"It was only natural that someone concerned about the rights of minorities and opening up the legal and political process would be concerned about protecting the interests of future generations. Future generations are the ultimate minority. Justice Marshall understood that."

One of Justice Marshall's most important votes on the environment, wrote Mr. Percival in an article in the Environmental Law Reporter, occurred in a 1973 case involving the 1970 Clean Air Actamendments. The issue before the Supreme Court was whether the law required the Environmental Protection Agency to create a program to prevent significant deterioration of air quality in areas of the country that already met national air quality standards.

After oral argument, the justices voted 5-3 to reverse a lower court ruling requiring EPA to create such a program, with Justice Marshall voting with the majority.

One of Justice Marshall's law clerks, Louis Michael Seidman, sent him a note urging him to change his vote. "You voted at conference with Justice [Potter] Stewart, but you indicated subsequently that you were thinking of changing your vote. If you vote the other way, there will be a 4-4 split. I think you should do so. . . . I cannot believing that in passing a pro-environment bill, Congress thought it was giving the go-ahead to clean air states to pollute their air."

Justice Marshall subsequently changed his vote, a move that created a 4-4 tie in the court. The lower court ruling stood. "We have a major program to protect air quality solely because Justice Marshall changed his vote at the last minute," Mr. Percival said.

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